{00102322;v1/ 95-156/083} MASTER EQUIPMENT LEASE AND SUBLEASE AGREEMENT [for use with a public institution of higher education] THIS MASTER EQUIPMENT LEASE AND SUBLEASE AGREEMENT, dated as of __________, 20__ (the “Master Lease”), and entered into by and among _________________________ as Lessor (the “Lessor”), the New Jersey Educational Facilities Authority, a body corporate and politic and public instrumentality duly organized and validly existing under the laws of the State of New Jersey, as Lessee (the “Lessee”), and ______________________________, a public institution of higher education organized and existing under the laws of the State of New Jersey, as Sub-Lessee (the “Sub-Lessee”); WITNESSETH: WHEREAS, the Lessee is authorized by the laws of the State of New Jersey including the New Jersey Educational Facilities Authority Law, Public Laws of 1967, Chapter 271, N.J.S.A. 18A:72A-1 et seq., as amended and supplemented (the “Act”) to provide for the financing of educational facilities, as defined in the Act; and WHEREAS, the Sub-Lessee is a ____________________ organized and existing under the laws of the State of New Jersey and is authorized, pursuant to N.J.S.A. [18A:64-6(q)], to lease, acquire, purchase and hold real and personal property; and WHEREAS, the parties hereto desire that the Lessee from time to time (a) lease from the Lessor certain Equipment to be specified by the Sub-Lessee and described in each Schedule (as hereinafter defined) and (b) sub-lease such Equipment to the Sub-Lessee on the terms and conditions set forth in each Lease (as hereinafter defined); and WHEREAS, in connection with the execution of each Lease, the Lessor shall deposit into an Acquisition Fund with an Acquisition Fund Custodian to be held and administered under an Acquisition Fund and Account Control Agreement (as each such term is hereinafter defined) the amount specified in such Lease and represented by the Sub-Lessee to be sufficient to acquire the Equipment identified in such Lease; and WHEREAS, the Sub-Lessee shall make Rental Payments (as hereinafter defined) and certain other payments directly to the Lessor on behalf of the Lessee for the possession, use and ownership of the Equipment; and WHEREAS, no Lease shall be deemed to constitute a debt or liability or moral obligation of the State of New Jersey (the “State”) or any political subdivision thereof, or a pledge of the faith and credit or taxing power of the State or any political subdivision thereof, but shall be a special, limited obligation of the Lessee payable solely from the Rental Payments payable under such Lease by the Sub-Lessee to the Lessor on behalf of the Lessee; and WHEREAS, as security for the payment of all of the Sub-Lessee’s obligations under each Lease, the Sub-Lessee grants to the Lessee and the Lessee assigns to the Lessor a first lien security interest in and to such Equipment and in and to moneys and investments held from time to time in the Acquisition Fund; DRAFT
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{00102322;v1/ 95-156/083}
MASTER EQUIPMENT LEASE AND SUBLEASE AGREEMENT
[for use with a public institution of higher education]
THIS MASTER EQUIPMENT LEASE AND SUBLEASE AGREEMENT, dated as of
__________, 20__ (the “Master Lease”), and entered into by and among
_________________________ as Lessor (the “Lessor”), the New Jersey Educational Facilities
Authority, a body corporate and politic and public instrumentality duly organized and validly
existing under the laws of the State of New Jersey, as Lessee (the “Lessee”), and
______________________________, a public institution of higher education organized and
existing under the laws of the State of New Jersey, as Sub-Lessee (the “Sub-Lessee”);
WITNESSETH:
WHEREAS, the Lessee is authorized by the laws of the State of New Jersey including
the New Jersey Educational Facilities Authority Law, Public Laws of 1967, Chapter 271,
N.J.S.A. 18A:72A-1 et seq., as amended and supplemented (the “Act”) to provide for the
financing of educational facilities, as defined in the Act; and
WHEREAS, the Sub-Lessee is a ____________________ organized and existing under
the laws of the State of New Jersey and is authorized, pursuant to N.J.S.A. [18A:64-6(q)], to
lease, acquire, purchase and hold real and personal property; and
WHEREAS, the parties hereto desire that the Lessee from time to time (a) lease from the
Lessor certain Equipment to be specified by the Sub-Lessee and described in each Schedule (as
hereinafter defined) and (b) sub-lease such Equipment to the Sub-Lessee on the terms and
conditions set forth in each Lease (as hereinafter defined); and
WHEREAS, in connection with the execution of each Lease, the Lessor shall deposit
into an Acquisition Fund with an Acquisition Fund Custodian to be held and administered under
an Acquisition Fund and Account Control Agreement (as each such term is hereinafter defined)
the amount specified in such Lease and represented by the Sub-Lessee to be sufficient to acquire
the Equipment identified in such Lease; and
WHEREAS, the Sub-Lessee shall make Rental Payments (as hereinafter defined) and
certain other payments directly to the Lessor on behalf of the Lessee for the possession, use and
ownership of the Equipment; and
WHEREAS, no Lease shall be deemed to constitute a debt or liability or moral
obligation of the State of New Jersey (the “State”) or any political subdivision thereof, or a
pledge of the faith and credit or taxing power of the State or any political subdivision thereof, but
shall be a special, limited obligation of the Lessee payable solely from the Rental Payments
payable under such Lease by the Sub-Lessee to the Lessor on behalf of the Lessee; and
WHEREAS, as security for the payment of all of the Sub-Lessee’s obligations under
each Lease, the Sub-Lessee grants to the Lessee and the Lessee assigns to the Lessor a first lien
security interest in and to such Equipment and in and to moneys and investments held from time
to time in the Acquisition Fund;
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NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged and in consideration of the premises contained in each Lease, the Lessor, the
Lessee and the Sub-Lessee agree as follows:
ARTICLE I
Section 1.01 Definitions. The following terms shall have the meanings indicated below
unless the context clearly requires otherwise:
“Acquisition Amount” means the amount specified in each Lease and represented by the
Sub-Lessee to be sufficient to acquire the Equipment identified in such Lease.
“Acquisition Fund” means, with respect to any Lease, the fund established and held by
the Acquisition Fund Custodian pursuant to the related Acquisition Fund and Account Control
Agreement, if any.
“Acquisition Fund and Account Control Agreement” means, with respect to each Lease,
an Acquisition Fund and Account Control Agreement, if any, substantially in the form of Exhibit
A attached hereto, executed and delivered by the Lessor, the Lessee, the Sub-Lessee and the
Acquisition Fund Custodian in connection with such Lease, pursuant to which the related
Acquisition Fund is to be established and administered.
“Acquisition Fund Custodian” means, with respect to any Acquisition Fund and Account
Control Agreement, the party identified as such in such Acquisition Fund and Account Control
Agreement, and its successors and assigns.
“Acquisition Period” means, with respect to each Lease, that period stated in the
Schedule to such Lease during which the Lease Proceeds attributable to such Lease may be
expended on Equipment Costs.
“Annual Administrative Fee” means such annual fee for the general administrative
services of the Lessee as the Lessee in its sole discretion may from time to time determine.
“Authority” means the New Jersey Educational Facilities Authority.
“Authorized Officer” means: (a) in the case of the Lessor, [its President, any Vice
President, its Treasurer, its Secretary or any Assistant Treasurer]; (b) in the case of the Lessee,
the Chair, Vice Chair, Executive Director, Deputy Executive Director, Treasurer, Director of
Project Management, Director of Compliance Management, Secretary, Assistant Treasurer or
any Assistant Secretary of the Authority, and any other person authorized by resolution of the
Authority, and any such officers designated as “acting” or “interim”; and (c) in the case of the
Sub-Lessee, its ______________, _______________, _______________ or _______________.
“Bond Counsel” means nationally recognized counsel in the area of tax-exempt
municipal obligations satisfactory to the Lessor and Lessee.
“Certificate of Acceptance” means a Certificate of Acceptance, in substantially the form
set forth as Exhibit B hereto, whereby the Sub-Lessee acknowledges receipt in good condition of
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particular items of Equipment identified therein, confirms the date of delivery thereof and certain
other matters.
“Code” means the Internal Revenue Code of 1986, as amended. Each reference to a
Section of the Code shall be deemed to include the United States Treasury Regulations proposed
or in effect thereunder.
“Equipment” means the property listed in each of the Leases, to be used in connection
with the Sub-Lessee’s educational purposes, which property shall be identified in a Schedule
executed by or pursuant to the authority of the Lessee and the Sub-Lessee, accepted by the
Lessor in writing and acknowledged by the Acquisition Fund Custodian in writing and identified
as part of the related Lease, and all replacements, repairs, restorations, modifications and
improvements thereof or thereto made pursuant to Section 9.05(b) or Article X. Whenever
reference is made in this Master Lease to Equipment listed in a Lease, such reference shall be
deemed to include all such replacements, repairs, restorations, modifications and improvements
of or to such Equipment.
“Equipment Costs” means the total cost of the Equipment listed in each Lease, including
all delivery charges, installation charges, capitalizable consulting and training fees, legal fees,
financing costs, recording and filing fees and other costs necessary to vest full, clear legal title in
and to the Equipment in the Sub-Lessee, subject to the security interest granted to the Lessee and
assigned to the Lessor as set forth in each Lease, and otherwise incurred in connection with the
financing provided by the installment purchase of the Equipment as provided in each Lease;
provided that in no event shall the delivery charges, installation charges, taxes or other non-
capitalizable costs relating to the Equipment listed in any Lease which are to be financed by the
Lessor hereunder exceed 5% of the total cost of such Equipment as determined by the Lessor;
and provided further that in no event shall the capitalizable consulting and training fees and
similar capitalizable “soft costs” relating to such Equipment be included without Lessor’s prior
consent.
“Event of Default” means an Event of Default described in Section 14.01.
“Expense Fund” means, with respect to any Lease, the fund, if any, established and held
by the Acquisition Fund Custodian pursuant to the related Acquisition Fund and Account
Control Agreement.
“Initial Administrative Fee” means, with respect to each Lease, the fee paid or payable to
the Authority for its services in connection with entry into each Lease, calculated at the rate of
[1/10 of 1%] of the principal amount of each Lease.
“Lease” means a Schedule and the terms of this Master Lease which are incorporated by
reference into such Schedule. Each Schedule shall constitute a separate and independent Lease.
“Lease Proceeds” means, with respect to each Lease, the total amount of money to be
paid by the Lessor to the related Acquisition Fund Custodian for deposit and application in
accordance with such Lease and the related Acquisition Fund and Account Control Agreement.
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“Lease Term” means, with respect to each Lease, the term specified in such Lease in
accordance with Article V hereof.
“Lessee” means the entity referred to as Lessee in the first paragraph of this Master
Lease, acting as lessee and sub-lessor under this Master Lease.
“Lessor” means (a) the entity referred to as Lessor in the first paragraph of this Master
Lease or (b) any assignee or transferee of any right, title or interest of the Lessor in and to the
Equipment under a Lease or any Lease (including Rental Payments thereunder) pursuant to
Section 13.01, but does not include any entity solely by reason of that entity retaining or
assuming any obligation of the Lessor to perform under a Lease.
“Master Lease” means this Master Equipment Lease and Sublease Agreement, including
the exhibits hereto, together with any amendments and modifications to the Master Lease
pursuant to Section 15.04.
“PATRIOT Act” means the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into
law October 26, 2001).
“Purchase Price” means, with respect to the Equipment listed on a Lease, the amount
that the Sub-Lessee may or must from time to time pay or cause to be paid to the Lessor to
purchase the Equipment as set forth in the related Rental Payment Schedule, plus all other
amounts due under such Lease.
“Rental Payments” means the basic rental payments payable by the Sub-Lessee under
each Lease pursuant to Section 6.01. As provided in Article VI hereof, Rental Payments shall be
payable by the Sub-Lessee directly to the Lessor on behalf of the Lessee in the amounts and at
the times during the Lease Term as set forth in the applicable Lease.
“Schedule” means each separately numbered Schedule of Property substantially in the
form of Exhibit C hereto together with a Rental Payment Schedule attached thereto substantially
in the form of Exhibit C-1 hereto.
“Scheduled Expiration Date” means, with respect to each Lease, the date specified in the
applicable Schedule.
“State” means the State of New Jersey.
“Sub-Lessee” means the entity referred to as Sub-Lessee in the first paragraph of this
Master Lease.
“Tax Certificate” means a tax-exemption agreement and certificate executed by the
Lessee and the Sub-Lessee, respectively, with respect to each Lease, in form and substance
satisfactory to the Lessor and its special tax counsel.
“Termination Date” means, with respect to each Lease, the date upon which the
applicable Lease Term ends, as provided in Section 5.02 hereof.
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“Vendor” means the manufacturer or supplier of the Equipment or any other person as
well as the agents or dealers of the manufacturer or supplier from whom the Lessor arranged the
Lessee’s and the Sub-Lessee’s acquisition and financing of the Equipment pursuant to the
applicable Lease.
ARTICLE II
Section 2.01 Representations and Covenants of the Lessee. The Lessee represents,
covenants and warrants, for the benefit of the Lessor, on the date hereof and as of the date of
execution and delivery of each Lease, as follows:
(a) The Lessee is a body corporate and politic and a public instrumentality duly
created and validly existing under the Constitution and laws of the State.
(b) The Lessee is authorized under the Constitution and laws of the State to enter into
this Master Lease, each Lease and the Acquisition Fund and Account Control Agreement and the
transactions contemplated hereby and thereby and to perform all of its obligations hereunder and
under each Lease and the Acquisition Fund and Account Control Agreement.
(c) The Lessee has duly authorized the execution and delivery of this Master Lease,
each Lease and the Acquisition Fund and Account Control Agreement by proper action of its
governing body at a meeting duly called, regularly convened and attended throughout by the
requisite quorum of the members thereof, or by other appropriate official approval, and all
requirements have been met and procedures have occurred in order to ensure the validity and
enforceability of this Master Lease, each Lease and the Acquisition Fund and Account Control
Agreement against the Lessee.
(d) The Lessee has complied with such public bidding requirements as may be
applicable to entry by the Lessee into this Master Lease and the Acquisition Fund and Account
Control Agreement.
(e) No event or condition that constitutes, or with the giving of notice or the lapse of
time or both would constitute, an Event of Default exists as of the date this representation is
made.
ARTICLE III
Section 3.01 Representations and Covenants of the Sub-Lessee. The Sub-Lessee
represents, covenants and warrants, for the benefit of the Lessor and the Lessee, on the date
hereof and as of the date of execution and delivery of each Lease, as follows:
(a) The Sub-Lessee is, and throughout each Lease Term shall continue to be a public
institution of higher education authorized and existing under and by virtue of the laws of the
State (N.J.S.A. 18A:64-1 et seq.).
(b) The Sub-Lessee is authorized under the laws of the State to enter into this Master
Lease, each Lease and the Acquisition Fund and Account Control Agreement and the
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transactions contemplated hereby and thereby and to perform all of its obligations hereunder and
under each Lease and the Acquisition Fund and Account Control Agreement.
(c) The Sub-Lessee has been duly authorized to execute and deliver this Master
Lease, each Lease and the Acquisition Fund and Account Control Agreement under the terms
and provisions of a resolution of its Board of Trustees, and all requirements have been met and
procedures have occurred in order to ensure the validity and enforceability of this Master Lease,
each Lease and the Acquisition Fund and Account Control Agreement against the Sub-Lessee.
(d) The execution and delivery by the Sub-Lessee of this Master Lease, each Lease
and the Acquisition Fund and Account Control Agreement and the other documents
contemplated herein and the compliance with the provision of any and all of the foregoing
documents, and the application of the proceeds of each Lease, together with certain other
moneys, for the purposes in this Master Lease, do not and will not constitute a default under any
agreement or instrument to which the Sub-Lessee is a party or by which the Sub-Lessee or any of
its properties is or may be bound, nor will such action result in any violation of any statute,
order, rule or regulation applicable to the Sub-Lessee, or any order of any Federal, state or other
regulation agency or other governmental body having jurisdiction over the Sub-Lessee, and all
consents, approvals, authorizations and orders of any governmental or regulatory agency that are
required for the consummation of the transactions contemplated hereby, insofar as they may
relate to the Sub-Lessee, have been obtained and are or will be in full force and effect upon entry
into this Master Lease, any Lease and the Acquisition Fund and Account Control Agreement.
(e) No event or condition that constitutes, or with the giving of notice or the lapse of
time or both would constitute, an Event of Default exists as of the date this representation is
made. No default, event of default or event which, with notice or lapse of time, or both, would
constitute a default or an event of default under any other material agreement or material
instrument to which the Sub-Lessee is a party or by which the Sub-Lessee is or may be bound or
to which any properties of the Sub-Lessee are or may be subject, has occurred and is continuing.
(f) This Master Lease, the Acquisition Fund and Account Control Agreement and the
Lease entered simultaneously herewith are the legal, valid and binding general obligations of the
Sub-Lessee and each other Lease entered into pursuant to the Master Lease will be legal, valid
and binding general obligations of the Sub-Lessee and all of such Leases are enforceable in
accordance with their respective terms, except as the same may be limited by (a) applicable
insolvency, reorganization, liquidation, moratorium, receivership, readjustment of debt, or other
similar laws affecting the enforcement of creditor’s rights generally, as such laws may be applied
in the event of an insolvency, reorganization, liquidation, moratorium, receivership, readjustment
of debt or other similar proceedings, and (b) equitable principles (whether in a proceeding in
equity or at law).
(g) There is no action, suit, proceeding, inquiry or investigation at law or in equity or
before or by any public board or body pending or, to the knowledge of the Sub-Lessee,
threatened against or affecting the Sub-Lessee or any of its properties (or, to the best of the Sub-
Lessee’s knowledge, any basis therefor) wherein an unfavorable decision, ruling or finding
would have a material adverse effect on (i) the title of the Sub-Lessee’s officers to their
respective offices, (ii) the existence or the organization of the Sub-Lessee or any power of the
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Sub-Lessee, (iii) the validity of the proceedings, for the adoption, authorization, execution, with
repayment of the Master Lease, the Leases and the Acquisition Fund and Account Control
Agreement or its performance in connection with therewith, or (iv) the validity or the
enforceability of this Master Lease, the Leases and the Acquisition Fund and Account Control
Agreement or of any agreement or instrument to which the Sub-Lessee is a party and which is
used or contemplated for use in consummation of the transactions contemplated by this Master
Lease.
(h) The Sub-Lessee either has complied or will comply with such public bidding
requirements as may be applicable to this Master Lease, each Lease and the Acquisition Fund
and Account Control Agreement and the acquisition by the Sub-Lessee of the Equipment as
provided in each Lease.
(i) No event or condition that constitutes, or with the giving of notice or the lapse of
time or both would constitute, an Event of Default exists as of the date this representation is
made.
(j) During each Lease Term, except as otherwise permitted by this Master Lease, the
Equipment will be used by the Sub-Lessee, the Sub-Lessee agrees that the Equipment shall be
used by the Sub-Lessee as educational facilities, as defined in the Act and which, in the opinion
of the Sub-Lessee, are necessary, desirable and to the benefit and best interest of the Sub-Lessee.
(k) The Sub-Lessee further covenants and agrees, however, that at no time shall the
Equipment, or any part thereof, be used or be allowed to be used for sectarian instruction or as a
place for religious worship.
(l) The Sub-Lessee hereby agrees that the Lessee may use photographs or videos
taken on the Sub-Lessee’s campus (whether taken by the Authority or other person) in Lessee’s
newsletters, reports or other publications or materials (including powerpoint presentations) in
connection with the Authority’s operations.
(m) During the period this Master Lease is in force, the Sub-Lessee shall furnish or
cause to be furnished to the Lessor and the Lessee, at the Sub-Lessee’s expense, as soon as
available and in any event not later than 180 days after the end of each of its fiscal years, the
audited financial statements of the Sub-Lessee as of the close of and for such fiscal year, audited
by and with the report of the Sub-Lessee’s auditor who shall be an independent certified public
accountant acceptable to the Lessor, in accordance with Generally Accepted Accounting
Principles and such other financial information relating to the ability of the Sub-Lessee to
continue performing under each Lease as may be reasonably requested by the Lessor or the
Lessee, including management prepared budget updates presented to the Board of Trustees of the
Sub-Lessee and operating and statistical information which the Sub-Lessee is obligated to
provide pursuant to existing continuing disclosure agreements pursuant to Securities and
Exchange Commission Rule 15c2-12.
(n) The Sub-Lessee has kept, and throughout each Lease Term shall keep, its books
and records in accordance with generally accepted accounting principles.
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(o) The weighted average maturity (determined in accordance with the Code) of any
Lease will not exceed one hundred twenty percent (120%) of the weighted average reasonably
expected economic life in the hands of the Sub-Lessee of the Equipment financed by Lease
Proceeds derived from such Lease.
(p) (A) Sub-Lessee is, and will at all times remain, in compliance with the following
(collectively, “Anti-Terrorism Law”): (1) the Trading with the Enemy Act, as amended, and each
of the foreign assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating
thereto, (2) the USA PATRIOT Act, Public Law 107-56, as amended; (3) Executive Order No.
13,224 of September 24, 2001, Blocking Property and Prohibiting Transactions with Persons
Who Commit, Threaten to Commit or Support Terrorism, 66 U.S. Fed. Reg. 49,079 (2001), as
amended (“Executive Order No. 13,224”), and (4) any statute, treaty, law (including common
law), ordinance, regulation, rule, order, opinion, release, injunction, writ, decree or award of any
governmental authority relating to terrorism or money laundering; (B) neither Sub-Lessee nor
any Affiliate (as defined in any applicable Anti-Terrorism Law) of Sub-Lessee, or to Sub-
Lessee’s knowledge, any of its respective agents acting or benefitting in any capacity in
connection with any transactions hereunder, is any of the following (each a “Blocked Person”):
(i) a person that is listed in the annex to, or is otherwise subject to the provisions of, the
Executive Order No. 13,224, (ii) a person owned or controlled by, or acting for or on behalf of,
any person that is listed in the annex to, or is otherwise subject to the provisions of, Executive
Order No. 13,224, (iii) a person with which Lessor is prohibited from dealing or otherwise
engaging in any transaction by any Anti-Terrorism Law, (iv) a person that commits, threatens or
conspires to commit or supports “terrorism” as defined in Executive Order No. 13,224, (v) a
person that is named as a “specially designated national” on the most current list published by
the U.S. Treasury Department Office of Foreign Asset Control at its official website or any
replacement website or other replacement official publication of such list, or (vi) a person who is
affiliated with a person listed above; and (C) Sub-Lessee shall not, directly or indirectly, make
any payments to any government official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.
Section 3.02. Representations and Covenants of the Lessor. The Lessor represents,
covenants and warrants, for the benefit of the Lessee and the Sub-Lessee, on the date hereof and
as of the date of execution and delivery of each Lease, as follows:
(a) The Lessor is a [corporation] [limited liability company] duly created and validly
existing and in good standing under the laws of the State of __________. The Lessor has all
necessary licenses and permits, if any, required to carry on its business and to operate all of its
properties.
(b) The Lessor is authorized under the laws of the State of __________ and of the
State and its organizational documents to enter into this Master Lease, each Lease and the
Acquisition Fund and Account Control Agreement and the transactions contemplated hereby and
thereby and to perform all of its obligations hereunder and under each Lease and the Acquisition
Fund and Account Control Agreement.
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(c) The Lessor has been duly authorized to execute and deliver this Master Lease,
each Lease and the Acquisition Fund and Account Control Agreement under the terms and
provisions of a resolution of its [board of trustees] [members], and all requirements have been
met and procedures have occurred in order to ensure the validity and enforceability of this
Master Lease, each Lease and the Acquisition Fund and Account Control Agreement against the
Lessor.
(d) The execution and delivery by the Lessor of this Master Lease, each Lease and
the Acquisition Fund and Account Control Agreement and the other documents contemplated
herein and the compliance with the provision of any and all of the foregoing documents, and the
application of the proceeds of each Lease, together with certain other moneys, for the purposes in
this Master Lease, do not and will not constitute a default under any agreement or instrument to
which the Lessor is a party or by which the Lessor or any of its properties is or may be bound,
nor will such action result in any violation of the [articles of incorporation or by-laws] [operating
agreement] of the Lessor, any statute, order, rule or regulation applicable to the Lessor, or any
order of any Federal, state or other regulation agency or other governmental body having
jurisdiction over the Lessor, and all consents, approvals, authorizations and orders of any
governmental or regulatory agency that are required for the consummation of the transactions
contemplated hereby, insofar as they may relate to the Lessor, have been obtained and are or will
be in full force and effect upon entry into this Master Lease, any Lease and the Acquisition Fund
and Account Control Agreement.
(e) No event or condition that constitutes, or with the giving of notice or the lapse of
time or both would constitute, an Event of Default exists as of the date this representation is
made. No default, event of default or event which, with notice or lapse of time, or both, would
constitute a default or an event of default under any other material agreement or material
instrument to which the Lessor is a party or by which the Lessor is or may be bound or to which
any properties of the Lessor are or may be subject, has occurred and is continuing.
(f) This Master Lease, the Acquisition Fund and Account Control Agreement and the
Lease entered simultaneously herewith are the legal, valid and binding general obligations of the
Lessor and each other Lease entered into pursuant to the Master Lease will be legal, valid and
binding general obligations of the Lessor and all of such Leases are enforceable in accordance
with their respective terms, except as the same may be limited by (a) applicable insolvency,
reorganization, liquidation, moratorium, receivership, readjustment of debt, or other similar laws
affecting the enforcement of creditor’s rights generally, as such laws may be applied in the event
of an insolvency, reorganization, liquidation, moratorium, receivership, readjustment of debt or
other similar proceedings, and (b) equitable principles (whether in a proceeding in equity or at
law).
(g) There is no action, suit, proceeding, inquiry or investigation at law or in equity or
before or by any public board or body pending or, to the knowledge of the Lessor, threatened
against or affecting the Lessor or any of its properties (or, to the best of the Lessor’s knowledge,
any basis therefor) wherein an unfavorable decision, ruling or finding would have a material
adverse effect on (i) the title of the Lessor’s officers to their respective offices, (ii) the existence
or the organization of the Lessor or any power of the Lessor, (iii) the validity of the proceedings,
for the adoption, authorization, execution, with repayment of the Master Lease, the Leases and
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the Acquisition Fund and Account Control Agreement or its performance in connection with
therewith, or (iv) the validity or the enforceability of this Master Lease, the Leases and the
Acquisition Fund and Account Control Agreement or of any agreement or instrument to which
the Lessor is a party and which is used or contemplated for use in consummation of the
transactions contemplated by this Master Lease.
ARTICLE IV
Section 4.01 Lease and Sub-Lease of Equipment. Subject to the terms of this Master
Lease, the Lessor agrees to provide the funds specified in each Lease to be provided by it to
acquire the Equipment. Upon the execution of each Lease, the Lessor demises, leases, transfers
and lets to the Lessee, and the Lessee acquires, rents, leases and hires from the Lessor, the
Equipment set forth in such Lease, all in accordance with the provisions of such Lease. The
Lessee agrees to lease from the Lessor and sub-lease to the Sub-Lessee, and the Sub-Lessee
agrees to sub-lease from the Lessee, the Equipment set forth in such Lease, in accordance with
the provisions of such Lease. The Sub-Lessee and the Lessee hereby acknowledge and agree
that the Lessor shall retain a first lien on the Equipment in accordance with each Lease, as
provided in Section 8.02 hereof. The Lessor acknowledges and agrees that, if Sub-Lessee has
acquired certain Equipment prior to execution hereof, then such Equipment shall be deemed to
be acquired pursuant hereto and that Sub-Lessee shall be entitled to be reimbursed for costs
incurred to acquire such Equipment.
Section 4.02 Conditions to Lessor’s Performance Under Leases.
(a) As a prerequisite to the performance by the Lessor of any of its obligations
pursuant to a Lease, the conditions provided in subsection (b) of this Section 4.02 shall be
satisfied and the Lessee shall deliver or cause to be delivered to the Lessor the following:
(i) a fully completed Schedule, executed by the Lessee;
(ii) an Acquisition Fund and Account Control Agreement, executed by the
Lessee and the Acquisition Fund Custodian, unless the Lessor pays 100% of the
Acquisition Amount directly to the Vendor upon execution of the Lease;
(iii) a copy of the resolution of the governing body of the Lessee authorizing
the execution of such Schedule, the Acquisition Fund and Account Control Agreement
and related documents, certified by an Authorized Officer of the Lessee;
(iv) an opinion of the Lessee’s bond or special tax counsel as to the exclusion
from gross income of the interest component of the Rental Payments payable pursuant to
such Schedule and other related matters in the form set forth in Exhibit D hereto and an
opinion of the Attorney General of the State of New Jersey addressed to the Lessee
substantially in the form attached hereto as Exhibit E;
(v) Tax Certificate, executed by an Authorized Officer of the Lessee;
(vi) an IRS Form 8038-G with respect to the Lease, completed and executed
by the Lessee;
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(vii) an incumbency certificate of the Lessee, as to the identity of those
individuals authorized to execute and deliver the Lease and all related documents,
including specimen signatures of such individuals; and
(viii) such other items, if any, as are set forth in such Lease or are reasonably
required by the Lessor.
(b) As a prerequisite to the performance by the Lessor of any of its obligations
pursuant to a Lease, the conditions provided in subsection (a) of this Section 4.02 shall be
satisfied and the Sub-Lessee shall deliver or cause to be delivered to the Lessor the following:
(i) a fully completed Schedule, executed by the Sub-Lessee;
(ii) an Acquisition Fund and Account Control Agreement, executed by the
Sub-Lessee, unless the Lessor pays 100% of the Acquisition Amount directly to the
Vendor upon execution of the Lease;
(iii) a copy of the resolution of the Board of Trustees of the Sub-Lessee
authorizing the execution of such Schedule, the Acquisition Fund and Account Control
Agreement and related documents, certified by an Authorized Officer of the Sub-Lessee;
(iv) the Tax Certificate executed by an Authorized Officer of the Sub-Lessee;
(v) an incumbency certificate of the Sub-Lessee as to the identity of those
individuals authorized to execute and deliver the Lease and all related documents,
including specimen signatures of such individuals;
(vi) certificates of insurance demonstrating compliance with the insurance
provisions of Section 9.03 with respect to the Equipment financed by such Lease;
(vii) appropriate financing statements on Form UCC-1 required to perfect the
security interest in the Equipment to be financed by such Lease, and notice of security
interest and assignment to the Acquisition Fund Custodian with respect to the Acquisition
Fund;
(viii) an opinion of counsel of the Sub-Lessee, addressed to the Lessor and
Lessee, substantially in the form attached hereto as Exhibit F;
(ix) executed cop(ies) of any waiver(s), release(s) and/or subordination(s)
required by Section 8.05 of this Agreement;
(x) evidence satisfactory to the Lessor that the Sub-Lessee has complied with
any covenants of the Sub-Lessee contained in any documents to which it is a party,
including without limitation covenants relating to the incurrence of indebtedness and the
creation of liens on its properties; and
(xi) such other items, if any, as are set forth in such Lease or are reasonably
required by the Lessor.
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(c) Notwithstanding anything in this Master Lease to the contrary, this Master Lease
is not a commitment by the Lessor to enter into any Lease not currently in existence, and nothing
in this Master Lease shall be construed to impose any obligation upon the Lessor to enter into
any proposed Lease, it being understood that whether the Lessor enters into any proposed Lease
shall be a decision solely within the Lessor’s discretion.
(d) The Lessee and the Sub-Lessee will each cooperate with the Lessor in the
Lessor’s review of any proposed Lease. Without limiting the foregoing, the Lessee and the Sub-
Lessee will each provide the Lessor with any documentation or information the Lessor may
request in connection with the Lessor’s review of any proposed Lease. Such documentation may
include, without limitation, documentation concerning the Equipment and its contemplated use
and location and documentation or information concerning the financial status of the Sub-Lessee
and other matters related to the Lessee and the Sub-Lessee.
(e) Lessor agrees, upon execution of this Master Lease and entry into any Lease
hereunder to provide to Lessee and Sub-Lessee a copy of the resolution of Lessor’s governing
body authorizing entry by Lessor into such transaction, an opinion of Lessor’s counsel as to the
due authorization and enforceability of this Master Lease and each such Lease and such
certifications or other documents as are required by Lessee’s bond or special tax counsel and/or
to provide the opinion required of Lessee’s bond or special tax counsel hereunder.
ARTICLE V
Section 5.01 Commencement of Lease Term. The Lease Term applicable to each Lease
shall commence and interest shall begin to accrue on the date specified in such Lease and shall
continue until all Rental Payments and all other amounts due under such Lease have been paid in
full, unless terminated earlier as provided in Section 5.02.
Section 5.02 Termination of Lease Term. The Lease Term applicable to each Lease
shall terminate upon the earliest to occur of any of the following events:
(a) the exercise by the Sub-Lessee of the option granted under the provisions of
Article X or XII hereof to purchase the Equipment identified in such Lease and the payment of
all other amounts due from the Sub-Lessee with respect to such Lease; or
(b) the Lessor’s election to terminate a Lease under Article XIV due to the Sub-
Lessee’s default under such Lease; or
(c) the date on which the Sub-Lessee has paid all amounts due from the Sub-Lessee
under all Leases that have been entered into as provided in this Master Lease.
ARTICLE VI
Section 6.01 Payment of Rental Payments. The Sub-Lessee shall promptly pay to the
Lessor, on behalf of the Lessee, Rental Payments in lawful money of the United States of
America, in the amounts and on the dates set forth in each Lease. All other amounts required to
be paid by the Sub-Lessee under a Lease shall be paid in lawful money of the United States of
America. Any and all payment obligations hereunder or on account of breach hereof or of any
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lease shall be the sole obligation of the Sub-Lessee and no provision, covenant or agreement
contained in any Lease or any obligation imposed on the Lessee in a Lease, or the breach thereof,
shall constitute or give rise to or impose upon the Lessee a pecuniary liability, a charge upon its
general credit or taxing powers or a pledge of its general revenues. In making the agreements,
provisions and covenants set forth in any Lease, the Lessee has no obligation other than a
special, limited obligation to make payments solely from Rental Payments made by the Sub-
Lessee. The Sub-Lessee shall pay directly to the Lessor for the benefit of the Lessee a charge on
any Rental Payment not paid on the date such payment is due at the rate of 12% per annum from
such date, computed daily on the basis of a 360 day year and actual days elapsed. The
obligations of Sub-Lessee under each Lease shall be general obligations of the Sub-Lessee
payable from any legally available funds of the Sub-Lessee.
Section 6.02 Interest and Principal Components. A portion of each Rental Payment is
paid as, and represents payment of, interest, and the balance of each Rental Payment is paid as,
and represents payment of, principal. Each Lease shall set forth the principal and interest
components of each Rental Payment payable thereunder during the Lease Term.
Section 6.03 Rental Payments to Be Unconditional. The obligations of the Sub-Lessee
to make payment of the Rental Payments required under this Article VI and to make other
payments under each Lease and to perform and observe the covenants and agreements contained
in each Lease shall be absolute and unconditional in all events, without abatement, diminution,
deduction, set-off or defense for any reason, including without limitation any failure of the
Equipment to be delivered or installed, any defects, malfunctions, breakdowns or infirmities in
the Equipment or any accident, condemnation, destruction or unforeseen circumstances.
Notwithstanding any dispute between the Sub-Lessee and any of the Lessee, the Lessor, any
Vendor or any other person, the Sub-Lessee shall make all Rental Payments when due and shall
not withhold any Rental Payments pending final resolution of such dispute, nor shall the Sub-
Lessee assert any right of set-off or counterclaim against its obligation to make such payments
required under any Lease. The Lessor shall promptly notify the Lessee of any interruption of
payments due under any Lease.
Section 6.04 Tax Covenant.
(a) It is the intention of the parties hereto that the interest portion of the Rental
Payments received by the Lessor under any Lease be and remain excludible from gross income
for purposes of federal income taxation.
(b) The Lessee and the Sub-Lessee each covenant that it will take no action or permit
any action which would cause the interest component of Rental Payments to be or to become
ineligible for the exclusion from gross income of the owner or owners thereof for federal income
tax purposes, nor will it omit to take or cause to be taken, in timely manner, any action, which
omission would cause the interest component of Rental Payments to be or to become ineligible
for the exclusion from gross income of the owner or owners thereof for federal income tax
purposes.
(c) The Sub-Lessee covenants that it will pay any rebate due to the United States of
America in connection with each Lease and that it will take any and all other action lawfully
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within its powers and applicable to the acts done or omitted by the Sub-Lessee so as to maintain
such exclusion from gross income for federal income tax purposes of the interest component of
the Rental Payments under each Lease, and that it will not perform an act or enter into any
agreement or use or permit the use of the Equipment or any portion thereof in a manner that shall
have the effect of terminating such exclusion from gross income for federal income tax purposes
of the interest component of the Rental Payments received by the Lessor, including, without
limitation, leasing or transferring all or any portion of the Equipment or contracting with a third
party for the use or operation of all or any portion of the Equipment if entering into such lease,
transfer or contract would have such effect.
(d) It is the intention of the parties hereto that the Sub-Lessee shall be treated as the
owner of the Equipment for federal income tax purposes. Neither the Lessor nor the Lessee shall
take any action inconsistent with the Sub-Lessee’s ownership of the Equipment for federal
income tax purposes except pursuant to the exercise of remedies under Article XIV.
Section 6.05 Initial and Annual Administrative Fees; Expenses of Rebate Calculations
and Compliance. The Sub-Lessee shall pay the Initial Administrative Fee to the Lessee on the
date of original execution and delivery of each Lease. The Sub-Lessee shall also pay to the
Lessee the Annual Administrative Fee (if any) within thirty (30) days after the Sub-Lessee’s
receipt of an invoice therefor from the Lessee. The obligation to pay the Annual Administrative
Fee (if any) shall continue until all of the Sub-Lessee’s obligations under this Master Lease have
been paid in full. The Sub-Lessee agrees to pay all costs of complying with rebate requirements
including without limitation fees of professionals retained by the Lessee for purposes of
complying with rebate requirements.
ARTICLE VII
Section 7.01 Delivery, Installation and Acceptance of Equipment. The Sub-Lessee
shall order the Equipment, cause the Equipment to be delivered and installed at the location
specified in each Lease and pay any and all delivery and installation costs and other Equipment
Costs in connection therewith. When the Equipment listed in any Lease has been delivered and
installed, the Sub-Lessee shall immediately accept such Equipment and evidence said acceptance
by executing and delivering to the Lessor and the Lessee a Certificate of Acceptance.
Section 7.02 Enjoyment of Equipment. The Lessor and the Lessee shall provide the
Sub-Lessee with quiet use and enjoyment of the Equipment during the respective Lease Term,
and the Sub-Lessee shall peaceably and quietly have, hold and enjoy the Equipment during each
respective Lease Term, without suit, trouble or hindrance from the Lessor or the Lessee, except
as expressly set forth in the related Lease. Neither the Lessor nor the Lessee shall interfere with
such quiet use and enjoyment during such respective Lease Term so long as the Sub-Lessee is
not in default under the related Lease.
Section 7.03 Location; Inspection. Once installed, no item of the Equipment will be
moved from the location specified for it in the Lease on which such item is listed without the
Lessor’s consent, which consent shall not be unreasonably withheld. The Lessor and the Lessee
shall have the right at all reasonable times during regular business hours, upon reasonable
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advance notice to the Sub-Lessee, to enter into and upon the property of the Sub-Lessee for the
purpose of inspecting the Equipment.
ARTICLE VIII
Section 8.01 Title to the Equipment. During each Lease Term, and so long as the Sub-
Lessee is not in default under Article XIV hereof, all right, title and interest in and to each item
of the Equipment shall be vested in the Sub-Lessee immediately upon its acceptance of each item
of Equipment, subject to the terms and conditions of the applicable Lease. The Sub-Lessee shall
at all times protect and defend, at its own cost and expense, its title in and to the Equipment from
and against all claims, liens and legal processes of creditors of the Sub-Lessee, and keep all
Equipment free and clear of all such claims, liens and processes. Upon the occurrence of an
Event of Default or upon termination of a Lease pursuant to Section 5.02(b) hereof, full and
unencumbered legal title to the Equipment shall pass to the Lessor, and the Sub-Lessee shall
have no further interest therein. In addition, upon the occurrence of such an Event of Default or
such termination, the Sub-Lessee shall execute and deliver to the Lessor such documents as the
Lessor may request to evidence the passage of such legal title to the Lessor and the termination
of the Sub-Lessee’s interest therein, and upon request by the Lessor shall deliver possession of
the Equipment to the Lessor in accordance with Section 14.02. Upon purchase of the Equipment
under a Lease by the Sub-Lessee pursuant to Section 12.01 or 12.02, the Lessor’s security
interest or other interest in the Equipment shall terminate, and the Lessor shall execute and
deliver to the Sub-Lessee such documents as the Sub-Lessee may request to evidence the
termination of the Lessor’s security interest in the Equipment subject to the related Lease.
Section 8.02 Security Interest in Equipment and Acquisition Fund. As security for the
Sub-Lessee’s payment to the Lessor on behalf of the Lessee of Rental Payments and all other
amounts payable to the Lessor under each Lease and performance of all other obligations under
each Lease, the Sub-Lessee hereby grants to the Lessee and the Lessee hereby assigns to the
Lessor a security interest constituting a first lien on (a) the Equipment under such Lease, (b)
moneys and investments held from time to time in the Acquisition Fund and (c) any proceeds of
any of the foregoing. The Lessee and the Sub-Lessee agree to execute such additional
documents, including financing statements, chattel mortgages, affidavits, notices and similar
instruments, in form satisfactory to the Lessor, which the Lessor deems necessary or appropriate
to establish and maintain its security interest. The Lessor acknowledges and agrees that any
representations and covenants in this agreement as to the priority of the security interests granted
herein are representations and covenants solely of the Sub-Lessee and that the Lessee makes no
such representations or covenants.
Section 8.03 Change in Name or Corporate Structure of Sub-Lessee; Change in
Location of Sub-Lessee’s Principal Place of Business. The Sub-Lessee shall provide written
notice to the Lessor and the Lessee of any change in its name, corporate structure or principal
place of business. Such notice shall be provided thirty (30) days in advance of the date that such
change is planned to take effect. This Section shall also apply to any of the Sub-Lessee’s
assignees or subassignees. The Sub-Lessee may not change its corporate structure unless the
Lessor and the Lessor are provided with an opinion of Bond Counsel, that such change does not
adversely affect the exclusion from gross income of the interest component of Rental Payments
or adversely affect the security interests granted to the Lessor herein.
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Section 8.04 Liens and Encumbrances to Title. The Sub-Lessee shall keep the
Equipment free of all levies, liens and encumbrances except those created by each Lease. The
Sub-Lessee shall promptly discharge any mechanics’ or materialmen’s liens placed on the
Equipment under each Lease.
Section 8.05 Personal Property. The Equipment is and will remain personal property
and will not be deemed to be affixed to or a part of the real estate on which it may be situated,
notwithstanding that the Equipment or any part thereof may be or hereafter become in any
manner physically affixed or attached to real estate or any building thereon. Upon the request of
the Lessor, the Sub-Lessee shall, at the Sub-Lessee’s expense, furnish to the Lessor and the
Lessee a waiver, release and/or subordination of any interest in the Equipment from any party
having an interest in any such real estate or building.
ARTICLE IX
Section 9.01 Maintenance of Equipment by Sub-Lessee. At all times during each Lease
Term, the Sub-Lessee shall, at its own cost and expense, maintain, preserve and keep the
Equipment in good repair, working order and condition, and from time to time make or cause to
be made all necessary and proper repairs, replacements and renewals. Neither the Lessor nor the
Lessee shall have any responsibility in any of these matters or for the making of improvements
or additions to the Equipment. The Sub-Lessee shall perform or have performed at its own
expense any maintenance or repair necessary to keep the Equipment in working order.
Section 9.02 Taxes, Other Governmental Charges and Utilities Charges. The parties to
this Master Lease contemplate that the Equipment will be used for the tax-exempt purposes of
the Sub-Lessee and, therefore, that the Equipment will be exempt from all property taxes. In the
event that the use, possession or acquisition of the Equipment is nevertheless determined to be
subject to taxation in any form (except for income taxes of the Lessor), the Sub-Lessee shall pay
during each Lease Term, as the same respectively come due, all taxes and governmental charges
of any kind whatsoever that may at any time be lawfully assessed or levied against or with
respect to such Equipment, as well as all gas, water, steam, electricity, heat, power, telephone,
utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of
the Equipment; provided that, with respect to any governmental charges that may lawful be paid
in installments over a period of years, the Sub-Lessee shall be obligated to pay only such
installments as accrue during each Lease Term.
Section 9.03 Provisions Regarding Insurance. The Sub-Lessee shall, at its own
expense, cause casualty, public liability and property damage insurance to be carried and
maintained, or demonstrate to the satisfaction of the Lessor and the Lessee that adequate self-
insurance is provided, with respect to the Equipment sufficient to protect the full replacement
value of the Equipment and to protect the Lessor, the Lessee and the Sub-Lessee from liability in
all events. All insurance proceeds from casualty losses shall be payable to the Lessor and the
Sub-Lessee as hereinafter provided. The Sub-Lessee shall furnish to the Lessor and the Lessee,
upon request, certificates of insurance evidencing such coverage throughout each Lease Term.
Alternatively, upon the written approval of the Lessor and the Lessee, the Sub-Lessee may insure
the Equipment under a blanket insurance policy or policies that cover not only the Equipment but
also other properties.
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Any insurance policy pursuant to this Section shall be so written or endorsed as to make
losses, if any, payable to the Lessor and the Sub-Lessee as their respective interests may appear
and naming both the Lessor and the Lessee as additional insureds for liability. The Net Proceeds
(as defined in Section 10.01) of the insurance required in this Section shall be applied as
provided in Article X hereof. Each insurance policy provided for in this Section shall contain a
provision to the effect that the insurance company shall not cancel the policy or modify it
materially and adversely to the interest of the Lessor without first giving written notice thereof to
the Lessor and the Lessee at least thirty (30) days in advance of such cancellation or
modification; provided however that notice must be given no less than ten (10) days in advance
of cancellation or modification for nonpayment if such ten (10) day cancellation period is
customary in the insurance industry.
Section 9.04 Advances. In the event that the Sub-Lessee shall fail to maintain the full
insurance coverage required by each Lease or shall fail to keep the Equipment in good repair and
operating condition, the Lessor may (but shall be under no obligation to) purchase the required
policies of insurance and pay the premiums on the same or may make such repairs or
replacements as are necessary and provide for payment thereof; and all amounts so advanced
therefor by the Lessor, together with interest thereon at the rate of twelve percent (12%) per
annum, the Sub-Lessee shall pay to the Lessor on demand.
Section 9.05 Modifications and Substitutions.
(a) The Sub-Lessee shall not, without the prior written consent of the Lessor, make
any material alterations, modifications or additions to the Equipment that cannot be removed
without materially damaging the functional capabilities or economic value of the Equipment.
Upon return of the Equipment to the Lessor in accordance with Section 14.02, and at the request
of the Lessor, the Sub-Lessee, at its sole cost and expense, shall remove all alterations,
modifications and additions and repair the Equipment as necessary to return the Equipment to the
condition in which it was furnished, ordinary wear and tear and permitted modifications
excepted.
(b) Notwithstanding the provisions of subsection (a) of this Section, the Sub-Lessee
may, with the prior written consent of the Lessor, substitute for parts, elements, portions or all of
the Equipment, other parts, elements, portions, equipment or facilities; provided, however, that
any substitutions made pursuant to the Sub-Lessee’s obligations to make repairs referenced
under Section 9.01 or 10.01 hereof shall not require such prior written consent. The Sub-Lessee
shall provide such documents or assurances as the Lessor may reasonably request to maintain or
confirm the Lessor’s security interest in the Equipment as so modified or substituted.
ARTICLE X
Section 10.01 Damage, Destruction and Condemnation. Unless the Sub-Lessee shall
have exercised its option to purchase the Equipment by making payment of the Purchase Price as
provided in the related Lease, if prior to the termination of the applicable Lease Term (a) the
Equipment or any portion thereof is destroyed (in whole or in part) or is damaged by fire or other
casualty, or (b) title to, or the temporary use of, the Equipment or any part thereof or the estate of
the Sub-Lessee in the Equipment or any part thereof shall be taken under the exercise or threat of
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the power of eminent domain by any governmental body or by any person, firm or corporation
acting under governmental authority, then the Sub-Lessee, the Lessee and the Lessor will cause
the Net Proceeds (as hereinafter defined) of any insurance claim to be applied to the prompt
repair, restoration, replacement, modification or improvement of the Equipment and the Net
Proceeds of any condemnation award or sale under threat of condemnation to be applied to the
prompt repair, restoration, replacement, modification or improvement of the Equipment. Any
balance of the Net Proceeds remaining after application in accordance with the preceding
sentence shall be paid to the Sub-Lessee.
If the Sub-Lessee elects to replace any item of Equipment (the “Replaced Equipment”)
pursuant to this Section, the replacement equipment (the “Replacement Equipment”) shall be of
similar type, utility and condition to the Replaced Equipment and shall be of equal or greater
value than the Replaced Equipment. The Sub-Lessee shall represent, warrant and covenant to
Lessor that each item of Replacement Equipment is free and clear of all claims, liens, security
interests and encumbrances, excepting only those liens created by or through the Lessor, and
shall provide to the Lessor any and all documents as the Lessor may reasonably request in
connection with the replacement, including, but not limited to, documentation in form and
substance satisfactory to Lessor evidencing Lessor’s security interest in the Replacement
Equipment. The Lessor, the Lessee and the Sub-Lessee hereby acknowledge and agree that any
Replacement Equipment acquired pursuant to this paragraph shall constitute “Equipment” for
purposes of this Master Lease and the related Lease. Lessee shall complete the documentation of
Replacement Equipment on or before the next Rent Payment date after the occurrence of a
casualty event, or be required to exercise the Purchase Option with respect to the damaged
equipment.
For purposes of Section 9.03 and this Article X, the term “Net Proceeds” shall mean the
amount remaining from the gross proceeds of any insurance claim, condemnation award or sale
under threat of condemnation after deducting all expenses (including attorneys’ fees) incurred in
the collection thereof.
Section 10.02 Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay
in full the cost of any repair, restoration, replacement, modification or improvement referred to
in Section 10.01 hereof, the Sub-Lessee shall either (a) complete such repair, restoration,
replacement, modification or improvement and pay any costs thereof in excess of the amount of
the Net Proceeds, in which event the Sub-Lessee agrees that if the Sub-Lessee shall make any
payments pursuant to the provisions of this Section, the Sub-Lessee shall not be entitled to any
reimbursement therefor from the Lessor or the Lessee nor shall the Lessee or the Sub-Lessee be
entitled to any diminution of the amounts payable under Article VI hereof; or (b) pay or cause to
be paid to the Lessor the amount of the then applicable Purchase Price for the Equipment, and,
upon such payment, the applicable Lease Term shall terminate and the Lessor’s security interest
in the Equipment shall terminate as provided in Article VIII hereof. The amount of the Net
Proceeds in excess of the then applicable Purchase Price, if any, shall be retained by the Sub-
Lessee.
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ARTICLE XI
Section 11.01 Disclaimer of Warranties. THE LESSOR AND THE LESSEE MAKE
NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE
VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR FITNESS FOR USE OF THE EQUIPMENT, OR ANY OTHER
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT
THERETO AND, AS TO THE LESSOR AND THE LESSEE, THE SUB-LESSEE’S
ACQUISITION OF THE EQUIPMENT SHALL BE ON AN “AS IS” BASIS. In no event shall
the Lessor or the Lessee be liable for any loss or damage in connection with or arising out of this
Master Lease, any Lease, the Equipment or the existence, furnishing, functioning or the Sub-
Lessee’s use of any item or products or services provided for in this Master Lease or any Lease.
Section 11.02 Vendor’s Warranties. The Lessor and the Lessee hereby irrevocably
appoint the Sub-Lessee their agent and attorney-in-fact during each Lease Term, so long as the
Sub-Lessee shall not be in default under a Lease, to assert from time to time whatever claims and
rights including warranties of the Equipment which the Lessor or the Lessee may have against
the Vendor. The Sub-Lessee’s sole remedy for the breach of such warranty, indemnification or
representation shall be against the Vendor of the Equipment, and not against either or both of the
Lessor and the Lessee, nor shall such matter have any effect whatsoever on the rights and
obligations of the Lessor or the Lessee with respect to this Master Lease or any Lease, including
the right to receive full and timely payments under any Lease. The Sub-Lessee expressly
acknowledges that the Lessor and the Lessee make, and have made, no representation or
warranties whatsoever as to the existence or availability of such warranties of the Vendor of the
Equipment.
Section 11.03 Use of the Equipment. The Sub-Lessee shall not install, use, operate or
maintain the Equipment improperly, carelessly, in violation of any applicable law or in a manner
contrary to that contemplated by the related Lease. The Sub-Lessee shall obtain all permits and
licenses, if any, necessary for the installation and operation of the Equipment. The Sub-Lessee
shall comply in all respects (including, without limitation, with respect to the use, maintenance
and operation of each item of the Equipment) with all laws of the jurisdictions in which its
operations involving any component of Equipment may extend and of any legislative, executive,
administrative or judicial body exercising any power or jurisdiction over the items of the
Equipment or its interest or rights under each Lease; provided that the Sub-Lessee may contest in
good faith the validity or application of any such law, regulation or ruling in any reasonable
manner that does not, in the opinion of the Lessor (as to its interests) and the Lessee (as to its
interests), adversely affect the respective interests of the Lessor and the Lessee, as applicable, in
and to the Equipment or their respective interests or rights under the related Lease.
Section 11.04 The Sub-Lessee’s Indemnification. The Sub-Lessee waives and releases
any claim now or hereafter existing against the Lessor, the Lessee, any company controlled by,
controlling, or under common control with the Lessor or the Lessee and all of their directors,
officers, employees, agents, attorneys, successors and assigns (each, an “Indemnified Person”)
on account of, and shall, to the extent permitted by law, indemnify, reimburse and hold each
Indemnified Person harmless from, any and all claims (including, but not limited to, claims
based on or relating to copyright, trademark or patent infringement, environmental liability,
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negligence, strict liability in tort, statutory liability or violation of laws), losses, damages,
obligations, penalties, liabilities, demands, suits, judgments or causes of action (collectively,
“Claims”), and all legal proceedings, and any reasonable costs or expenses in connection
therewith, in each case imposed on, incurred by or asserted against the Indemnified Person in
any way relating solely to, connected solely with or arising solely in any manner out of: (i) the
registration, purchase, or the ownership, delivery, condition, lease, assignment, storage,
transportation, possession, use, operation, return, repossession, sale or other disposition of, any
Equipment, before or during its Lease Term, (ii) any alleged or actual defect in any Equipment
(whether arising from the material or any article used therein, the design, testing, use,
maintenance, service, repair or overhaul thereof or otherwise) regardless of when such defect is
discovered or alleged, provided that the Equipment is in Sub-Lessee's possession; (iii) any
assertion or determination by the Internal Revenue Service that the interest component of Rental
Payments is not excludable from gross income for federal income tax purposes or (iv) this Lease
or any other related document, the enforcement hereof or thereof or the consummation of the
transactions contemplated hereby or thereby, other than (x) any Claim against Lessor resulting
solely from the negligence or willful misconduct of the Lessor (other than any negligence or
willful misconduct of another party imputed to the Lessor), or (y) any Claim against Lessee
resulting solely from the gross negligence or willful misconduct of the Lessee (other than gross
negligence or willful misconduct of another party imputed to the Lessee), unless covered by the
insurance the Sub-Lessee is required to maintain hereunder; further provided that the foregoing
is subject to the limitations of the provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1
et seq. and the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 et seq.
Section 11.05 Taxes.
(a) The Sub-Lessee shall pay or reimburse the Lessor and the Lessee for any and all
fees (including, but not limited to, license, documentation, recording or registration fees) and all
sales, use, gross receipts, property, occupational, value added or other taxes, levies, imposts,
duties, assessments, charges or withholdings of any nature whatsoever, together with any
penalties, fines or additions to tax, or interest thereon (each of the foregoing being hereafter
referred to as an “Imposition”), arising at any time before or during the Lease Term, or upon any
termination of this Lease or return of the Equipment to the Lessor, and levied or imposed on the
Lessor, directly or otherwise, by any federal, state or local government or taxing authority in the
United States or by any foreign country or foreign or international taxing authority on or with
respect to (a) any of the Equipment, (b) the exportation, importation, registration, purchase,